The Indian Resources Section frequently is involved in litigation protecting tribal off-reservation treaty rights to hunt, fish, and gather (“usufructuary rights”). In Minnesota v. Mille Lacs Band of Chippewa Indians, 526 U.S. 172 (1999), for example, the Supreme Court held that the Mille Lacs Band of Chippewa retained treaty rights on lands ceded to the United States in 1837. Under the authority of the Treaty of St. Peters of 1837, the Chippewa ceded a vast tract of lands stretching from what now is north-central Wisconsin to east-central Minnesota. Article 5 of the treaty stated that "[t]he privilege of hunting, fishing, and gathering the wild rice, upon the lands, the rivers and the lakes included in the territory ceded, is guarantied to the Indians, during the pleasure of the President of the United States."
In 1990, the Mille Lacs Band of Chippewa Indians filed suit seeking a declaratory judgment that they retained their usufructuary rights under the 1837 Treaty and an injunction against the State of Minnesota to prevent it from interfering with those rights. The United States intervened as a plaintiff in the suit.
In a 5-4 decision, the Supreme Court ruled in favor of the Tribe and the United States. The Court disposed of the State’s argument that an 1850 Executive Order, which contained a removal order, terminated the usufructuary rights under the 1837 Treaty, because the parties pointed to no source of authority for the President’s order, and “‘[t]he President’s power, if any, to issue the order must stem either from an act of Congress or from the Constitution itself.’”
The Court next addressed whether a subsequent treaty in 1855 abrogated the usufructuary rights. It noted that the entire 1855 Treaty is “devoid of any language expressly mentioning—much less abrogating—usufructuary rights,” despite the fact that similar treaties negotiated with other tribes during the same time period expressly revoked usufructuary rights reserved in earlier treaties.
The Court also stressed that the 1854 Treaty (to which the Mille Lacs Band was not a signatory) secured new usufructuary rights to the signatory Bands on the newly ceded territory. The Court concluded that the 1855 Treaty did not abrogate the usufructuary rights guaranteed under the 1837 Treaty.
Finally, the Court rejected the State’s argument that the Chippewa’s usufructuary rights under the 1837 Treaty were extinguished when Minnesota was admitted to the Union in 1858.
The Court’s affirmation of the Chippewa treaty rights was an important decision not just for the Chippewa, but for all tribes asserting their usufructuary treaty rights. The decision affirmed that such treaty rights are retained unless a treaty, statute, or executive order clearly expresses an intent to abrogate those rights.